The rule of law and the Constitution – a short overview Friday 23 July 2021 2021 CCCS Constitutional Law Conference University of Melbourne Law School Justice A.S. Bell, President of the Court of Appeal, Supreme Court of New South Wales* The phrase “the rule of law” has about it a rhetorical appeal which means that it is frequently invoked to justify actions or underwrite certain outcomes or analyses. Its meaning can vary greatly depending on who is using the expression and in what context. As Lord Bingham has noted: “Jeremy Waldron, commenting on Bush v Gore, in which the rule of law was invoked on both sides, recognised a widespread impression that utterance of those magic words meant little more than ‘Hooray for our side!’.”1 Lord Sumption recently described the expression “the rule of law” as being “one of the clichés of modern life”.2 Whether clichéd or not, for present purposes, as Edelman J noted, surely correctly, in Graham v Minister for Immigration and Multicultural and Indigenous Affairs,3 the precise content of the concept of the rule of law is “hotly disputed”.4 In Sir Anthony Mason’s words, it is a “concept which has defied definition”.5 Insofar as it is associated with AV Dicey, the phrase “the rule of law” is constitutional but, of course, in the small “c” sense of the word. It is not an expression used in Australia’s Constitution. The publication of Dicey’s Introduction to the Study and Law of the Constitution occurred in 1885 and was referred to in passing during the Convention Debates of 1891, 1897 and 1898 including by Barton, Inglis Clarke and * Justice Bell acknowledges the assistance of Mischa Davenport, Research Assistant to the Court of Appeal, in the preparation of this paper. 1 Thomas Bingham, ‘The Rule of Law’ (2007) 66(1) Cambridge Law Journal 67, 68, citing Bush v Gore, 531 US 98 (2000). 2 Jonathan Sumption Trials of the State: Law and the decline of politics (Profile Books, 2019) at 6. 3 (2017) 263 CLR 1. 4 Ibid 38 [82] (Edelman J). 5 Sir Anthony Mason “The Rule of Law in the Shadow of the Giant: The Hong Kong Experience” (2011) 33 Sydney LR 623 at 623. 1 Isaacs albeit not in the context of the rule of law per se but, rather, in relation to Dicey’s views of federalism and the role of the judiciary in a federal system. There can be little doubt, however, that many of the participants in the Convention Debates were familiar with his work. Dicey’s conception of the rule of law, however, was one articulated in the context of his thesis of parliamentary sovereignty which, of course, was rather different from the federal compact being given effect to by the framers of the Australian Constitution with its quite deliberate and structurally embedded separation of powers.6 Most discussions of the rule of law in and under the Australian Constitution commence with the famous passage from Sir Owen Dixon’s judgment in the Communist Party Case7 in 1951 where he said: “[T]he Constitution … is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.” The dichotomy apparently drawn in this passage between the separation of powers as a traditional concept given effect to in the Constitution, on the one hand, and the rule of law as an assumption of the Constitution, on the other hand, is an interesting one which perhaps gives some (but not much) insight into what Sir Owen did and did not think the rule of law entailed. The first point is that Dixon J evidently did not consider that the Constitution gave effect to the traditional conception of the rule of law. The dichotomy is also interesting because, as shall be seen, it is in and through the separation of powers that many later justices have seen the rule of law being given effect to in the Australian Constitution. Dixon J’s dictum has, to quote from the second sentence of Lisa Burton Crawford’s excellent monograph The Rule of Law and the Australian Constitution, “cast a long shadow”.8 Before I endeavour to cast a modicum of light on that shadow, it is perhaps surprising that one does not see many earlier references to the concept of the rule of law in the High Court’s jurisprudence than that of Sir Owen in the Communist Party Case. One 6 The importance of political and constitutional context for discussion of the rule of law is illustrated in D Kinley “Constitutional Brokerage in Australia: Constitutions and the Doctrines of Parliamentary Supremacy and the Rule of Law” (1994) 22 Fed LR 194. 7 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 193. 8 Lisa Burton Crawford, The Rule of Law and the Australian Constitution (Federation Press, 2017). 2 case in which it was referred to was Victorian Chamber of Manufactures v Commonwealth (Women's Employment Regulations)9 in which Sir Edward McTiernan, a justice not frequently cited in academic forums such as this one, referred to Isaacs J’s statement in Farey v Burvett10 that the defence power is limited in war-time only by the requirements of self-preservation, and said: “The statement postulates the inquiry being made in circumstances of grave national peril where no rational person would doubt that the co-operation of every individual and a co-ordinated effort in every department are necessary to save the Commonwealth. To raise that question in those circumstances is indeed a remarkable manifestation of the rule of law.” (emphasis added)11 McTiernan J’s point, I think, was that it was a mark of our constitutional arrangements that even at the height of terrible war, when all hands were to the deck as it were, the High Court would entertain and rule on a challenge to the validity of an Act and regulations whose purpose were undoubtedly genuinely directed to the war effort, the point being that, even in occasions of extremis, our system accepted and accommodated such a challenge to government power before the High Court. That challenge, incidentally, was successful in part. In Church of Scientology Inc v Woodward,12 Brennan J famously said that: "Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly". Most but not all of the relief that had been sought in the initiating process in this case was declaratory, and Brennan J’s observations were not made with specific reference to the constitutional writs. Two years later, in A v Hayden,13 his Honour was to say that “[n]o agency of the Executive Government is beyond the rule of law.” And, as 9 (1943) 67 CLR 347. 10 (1916) 21 CLR 433. 11 Women’s Employment Regulations (n 6) 383. 12 (1982) 154 CLR 25, 70 (emphasis added). See also R (on the application of Evans) and another (Respondents) v Attorney General (Appellant) [2015] AC 1787; [2015] UKSC 21 at [52]-[54]. 13 (1984) 156 CLR 532 at 588. Brennan J also said at 591 that “Though the courts must interpret the law, they are bound by the law they interpret and the notion that they might grant a dispensation from the law affecting the investigation of criminal offences subverts the very purpose of their being. More, it subverts the rule of law upon which our system of government depends.” 3 was subsequently stated in Plaintiff S157,14 section 75(v) of the Constitution secures this basic element of the rule of law under the Constitution. In 1998, in Kartinyeri v Commonwealth,15 Brennan CJ and McHugh J, referring to the famous passage from Dixon J’s judgment in Communist Party Case, observed that “the occasion has yet to arise for consideration of all that may follow from Dixon J's statement” (emphasis added). Some attempt to pursue that lead was made in APLA Ltd v Legal Services Commissioner (NSW)16 where one of the questions raised by the special case was whether or not the legal profession regulation proscribing advertising of legal services “impermissibly infringes the requirements of Ch III of the Constitution and of the principle of the rule of law as given effect by the Constitution”. Whilst it is fair to say that the argument focussed not so much on the rule of law but on the implied freedom of political communication, what was put in argument by then Mr Gageler SC was that “[i]t is fundamental to the rule of law that the subjects of the law know, or are able to ascertain, their rights and duties.”17 Whilst that might or might not be true, just because the Constitution may rest on an assumption of the rule of law, it does not follow that every possible aspect or element of the rule of law is thereby constitutionalized. The argument based on the rule of law in APLA did not gain any traction with the Court. It did, however, give Gleeson CJ, in a joint judgment with Heydon J, an opportunity to address clearly what role he considered the rule of law played under the Constitution.